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By Steven G. Mehta

A new case , Wherry v. Award Inc., recently came down on arbitration clauses. An arbitration clause was found to be procedurally unconscionable where plaintiffs were given the agreement when at the beginning of the relationship with defendants; were told they were required to sign it if they wanted to work for defendants and were only given a few minutes to review and sign the agreement.  The plaintiffs were also not given an opportunity to ask questions; nor were they given a copy of the document.  Further, the clause authorizing the arbitrator to award costs, including the arbitration fee, on the losing party, was substantively unconscionable.

The full copy of the decision is set forth below.










Plaintiffs and Respondents,




AWARD, INC., et al.,


Defendants and Appellants.





(Super. Ct. No. 30-2008-00108123)




Appeal from an order of the Superior Court of Orange County, Kirk H. Nakamura, Judge.  Affirmed

Law Office of Michael A. Conger, Michael A. Conger; and Richard H. Benes for Defendants and Appellants Award, Inc., Award-Superstars and Century 21 Superstars.

Duckor Spradling Metzger & Wynne, John C. Wynne and Rose M. Huelskamp for Defendant and Appellant Gregory Britton.

Law Offices of Jason L. Oliver, Jason L. Oliver; Law Offices of John W. Dalton and John W. Dalton for Plaintiffs and Respondents.


Defendants Award, Inc., Award-Superstars, Century 21 Superstars and Gregory Britton appeal from an order denying their petition to arbitrate the complaint for gender discrimination and sexual harassment filed by plaintiffs Karena Wherry and Rocelyn Traieh.  Defendants assert the petition should have been granted for a variety of reasons, including that in the contract executed by the parties they agreed to arbitrate all disputes, including those under FEHA (California Fair Employment and Housing Act; Gov. Code, § 12900 et seq.), and the terms of arbitration were not unconscionable.  We determine the arbitration provisions were unconscionable and therefore unenforceable and affirm.




In mid-2006 each plaintiff entered into an Independent Contractor Agreement (agreement) with defendant Award, Inc. to act as a salesperson; defendant Britton signed the contracts as the office manager.  Both agreements contain an arbitration provision, which states, “All disputes or claims between [plaintiff] and other licensee(s) associated with [defendant], or between [plaintiff] and [defendant] arising from or connected in any way with this [a]greement, which cannot be adjusted between the parties involved, shall be submitted to the Association of REALTORS®

(CAR) . . . pursuant to the provisions of its Bylaws, as may be amended from time to time, which are incorporated as part of this [a]greement by reference.  If the Bylaws of the Association do not cover arbitration of the dispute, or if the Association declines jurisdiction over the dispute, then arbitration shall be pursuant to the rules of California law.  The Federal Arbitration Act . . . shall govern this [a]greement.”

The relationships between plaintiffs and defendants were terminated in the spring and summer of 2007.  After plaintiffs filed a complaint for gender discrimination, sexual harassment, and retaliation, defendants filed a petition to compel arbitration, which the court granted.  Plaintiffs petitioned our court for a writ of mandate seeking to reverse the grant of the arbitration petition.  Subsequently we issued an alternative writ of mandate ordering the superior court to vacate its order compelling arbitration and enter a new order denying the motion or show cause in this court.  The trial court vacated its order and denied the motion without any explanation.   Additional facts are set out in the discussion.




1.  Introduction

Unconscionable arbitration agreements are not enforceable.  (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114-121 (Armendariz).) To be voided on this ground, the agreement must be both procedurally and substantively unconscionable.  (Ibid.)  “‘[T]he former focus[es] on “‘oppression’” or “‘surprise’” due to unequal bargaining power, the latter on “‘overly harsh’” or “‘one-sided’” results.’  [Citation.]”  (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071.)  But the two elements need not exist to the same degree.  The more one is present, the less the other is required.  (Armendariz, supra, 24 Cal.4th at p. 114.)

“The procedural element of an unconscionable contract generally takes the form of a contract of adhesion, “‘which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.”’  [Citation.]”  (Little v. Auto Stiegler, Inc., supra, 29 Cal.4th at p. 1071.)  “Substantively unconscionable terms may take various forms, but may generally be described as unfairly one-sided.”  (Id. at pp. 1071-1072.)  In the case before us both elements were present.


2.  Procedural Unconscionability

Procedural unconscionability may be proven by showing oppression, which is present when a party has no meaningful opportunity to negotiate terms or the contract is presented to them on a take it or leave it basis.  (Lhotka v. Geographic Expeditions, Inc. (2010) 181 Cal.App.4th 816, 821; Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, 1100.)

The record reveals that is what occurred here.  Both plaintiffs filed declarations stating that they were given the agreement when they first contracted with defendants and were told they were required to sign it if they wanted to work for defendants.  No one described the agreement’s contents and plaintiffs were given but a few minutes to review and sign it, without any time to ask questions.  Further they were never given a copy of the document.

Defendants provided no evidence to the contrary.  That plaintiffs initialed every page and signed the document does not vitiate plaintiffs’ lack of time to review the agreement or have a lawyer look at it.  This is similar to Ontiveros v. DHL Exp. (USA), Inc. (2008) 164 Cal.App.4th 494, where, in a FEHA action, the court held an arbitration provision in an employment contract was procedurally unconscionable because the employee did not know she had agreed to arbitrate, the agreement was buried in a stack of other documents, the employee had no time to review it, and no one explained it to her.  (Id. at p. 508.)  Defendants attempt to discount this evidence by claiming plaintiffs were “sophisticated.”  But again, they point to no evidence.

Defendants also dispute that it was a take it or leave it agreement, claiming there were “numerous material terms” “not pre[]printed[] and either handwritten or typed by the parties.”  A review of the record does not bear this out.  Each agreement was a preprinted form titled “Independent Contract Agreement” (capitalization omitted) provided by the CAR that did contain some blanks.  But the spaces to be filled in generally were not material:  the date of the agreement, the name of the agent, the realty associations of which the broker was a member, the multiple listing services to which it subscribed, the address of the office, the amount of auto insurance plaintiffs were required to carry, and signature blocks.

One additional blank was an indemnity and hold harmless provision, which referred to one of three exhibits attached to the agreements.  These exhibits also appear to be preprinted although they do not bear the CAR name.  In addition to indemnity the exhibits deal with compensation.  Besides the signature lines, the only handwritten portions filled in blanks stating the beginning commission rate and an anniversary date.  While compensation is material, there is no evidence that term or any other was negotiated, and in fact plaintiffs’ declarations at least imply if they do not actually state the information was filled in before the agreements were presented to them.  In sum, nothing in the record supports defendants’ argument the agreements were negotiated rather than presented as take it or leave it.

Further, contrary to defendants’ claim, the fact there were other real estate firms where plaintiffs could have contracted to work does not necessarily vitiate the unconscionability, especially given the fact that as a CAR form, it is highly likely most if not all other brokerage firms would be using it.  (Szetala v. Discover Bank, supra, 97 Cal.App.4th at p. 1100; Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 583.)  It merely means additional procedural unconscionability or a greater degree of substantive unconscionability must be shown.  (Gatton v. T-Mobile USA, Inc., supra, 152 Cal.App.4th at pp. 583-584.)  “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required . . . and vice versa.”  (Armendariz, supra, 24 Cal.4th at p. 114.)


3.  Substantive Unconscionability

“Substantive unconscionability addresses the fairness of the term in dispute.  It ‘traditionally involves contract terms that are so one-sided as to “shock the conscience,” or that impose harsh or oppressive terms.’  [Citation.]”  (Szetela v. Discover Bank, supra, 97 Cal.App.4th at p. 1100.)  Plaintiffs claim there are several provisions that are substantively unconscionable, including that there is no provision for discovery, plaintiffs are subject to fees and costs prohibited by FEHA, and the limitations period is less than what is allowed by statute.

In Armendariz, supra, 24 Cal.4th 83, the court held that a mandatory “arbitration agreement cannot be made to serve as a vehicle for the waiver of statutory rights created by the FEHA.”  (Id. at pp. 101, 103, fn. 8.)  To be valid, at minimum the arbitration agreement must require a neutral arbitrator, sufficient discovery, and a written decision adequate enough to allow judicial review.  Further, it must include all remedies available in a judicial action and the employee may not be required to pay unreasonable costs or fees.  (Id. at p. 102.)  Elimination of or interference with any of these basis provisions makes an arbitration agreement substantively unconscionable.

The terms of the arbitration manual violate Armendariz.  That case directs, among other things, that where employment is conditioned on mandatory arbitration, the employer cannot impose on the employee costs he or she would not normally have to pay if the case were litigated in a court.  (Armendariz, supra, 24 Cal.4th at pp. 110-111.)  Thus, an employee will not be prevented from filing a FEHA suit because of extraordinary costs of litigation.  (Ibid.)  Here the manual does just that by providing the arbitrator may impose costs, including the arbitration fee, on the losing party.

Defendants argue that the arbitration manual does not require plaintiffs to pay costs.  Nevertheless it empowers the arbitrator to impose them, in violation of Armendariz.  Defendants maintain that the arbitration panel “is able to award costs and attorney[] fees consistent with . . . Armendariz.”  But again, nowhere in the agreements or the arbitration manual is that protection provided.

In a similar vein defendants assert this is not a ground on which to invalidate arbitration because Armendariz held that a “mandatory employment arbitration agreement that contains within its scope the arbitration of FEHA claims impliedly obliges the employer to pay all types of costs that are unique to arbitration.”  (Armendariz, supra, 24 Cal.4th at p. 113.)  So it did but in that case there was no provision at all as to who would bear the costs, contrary to the terms here that expose plaintiffs to the risk of paying costs.  That plaintiffs are independent contractors and not employees makes no difference in this context.  The contract by which they were to work for defendants contained a mandatory arbitration provision.

In an FEHA case, unless it would be unjust, a prevailing plaintiff should recover attorney fees, but a prevailing defendant is awarded fees only if the case was frivolous or filed in bad faith.  (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 985.)  Here, the agreements provide that the prevailing party is entitled to attorney fees, without any limitation for a frivolous action or one brought in bad faith.  This violates Armendariz.  (Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387, 394-395.)  Defendants argue this merely means the arbitrator has the authority to impose attorney fees in line with FEHA.  But nothing in the agreement or the arbitration manual supports this claim.  Moreover, the arbitration manual explicitly states that if the agreement provides for an award of attorney fees, they may be included as part of the award.

In addition, the arbitration manual provides an arbitration must be filed within 180 days of the event triggering the action.  This is far shorter than the minimum one-year statute for FEHA claims.  (Gov. Code, § 12960, subd. (d); see Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1283 [180-day statute of limitations period one factor supporting finding of substantive unconscionability].)  Defendants claim that because plaintiffs filed their complaint within 180 days of receiving their right to sue notices, this issue is irrelevant.  But protections under FEHA are for the benefit of the entire public, not just these plaintiffs.  Thus, a mandatory arbitration provision required as part of an employment relationship cannot waive the statutory rights.  (Armendariz, supra, 24 Cal.4th at pp. 100-101.)

As a backup argument, defendants assert that if the terms of the arbitration manual are unconscionable, the court can somehow disregard them and rely on statutory rules of arbitration (Code Civ. Proc., § 1280 et seq.) based on the agreement’s provision that if CAR declines to arbitrate the case or its CAR’s bylaws “do not cover arbitration of the dispute,” California law will be used.  This does not persuade.

First, there is no evidence the bylaws “do not cover” the claims in the complaint.  Rather, some of the rules covering it are unconscionable.  Second, the language of the provision does not lend itself to an interpretation that it is a fallback in the event defendants’ arbitration rules are found unconscionable.  Third, Code of Civil Procedure section 1280 et seq. does not deal with all of the requirements under Armendariz necessary to enforce an arbitration agreement covering a FEHA dispute.

We also reject defendants’ claim plaintiffs had to prove the CAR would not agree to arbitrate the dispute.  Whether the CAR decided to arbitrate was completely within its discretion; the provision was entirely one-sided.  According to the terms of the agreement, plaintiffs had no power to control this.

In sum, the arbitration agreement was procedurally and substantively unconscionable, leading to the inevitable conclusion it is unenforceable.


4.  Severance

Relying on Civil Code section 1670.5, subdivision (a) defendants argue we may simply sever the unconscionable provisions and enforce the remainder of the agreement.  That section does give the court the discretion to do so but it also authorizes the court to reject the entire agreement.  In determining whether to sever, the court must consider the interests of justice.  (Armendariz, supra, 24 Cal.4th at p. 124.)  “[M]ultiple defects [in an agreement] indicate a systematic effort to impose arbitration on [a weaker party] . . . as an inferior forum that works to [the stronger party’s] advantage.”  (Ibid.)  Here, based on the several unconscionable provisions detailed above “the arbitration agreement is so ‘“permeated” by unconscionability [it] could only be saved, if at all, by a reformation beyond our authority.’  [Citations.]”  (Martinez v. Master Protection Corp. (2004) 118 Cal.App.4th 107, 119.)

We agree with defendants that the general rule does favor arbitration and terms should be interpreted liberally (Gravillis v. Coldwell Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 771), but when the agreement is rife with unconscionability as here, the overriding policy requires that the arbitration be rejected (Armendariz, supra, 24 Cal.4th at p. 1278).




The order is affirmed.  Respondents are entitled to costs on appeal.



















Filed 2/23/11













Plaintiffs and Respondents,




AWARD, INC., et al.,


Defendants and Appellants.





(Super. Ct. No. 30-2008-00108123)




Respondents and McGuinn, Hillsman & Palefsky, counsel for California Employment Lawyers Association, each requested that our opinion filed on February 9, 2011, be certified for publication.  It appears that our opinion meets the standards set
forth in California Rules of Court, rule 8.1105(c).  The request is GRANTED.  The opinion is ordered published in the Official Reports.


















By Steven G. MehtaSteve Mehta



A recent case came down that addressed the issue of arbitration agreements and whether they can be enforceable in light of arguments regarding unconscionability. In Olvera v. El Pollo Loco, Inc., — Cal.Rptr.3d —-, 2009 WL 1110828 (2nd. Dist. Cal. App. April 27, 2009), the plaintiff, Carlos Olvera, was a general manager of an El Pollo Loco restaurant.  The employees were provided with documents that identified the company’s dispute resolution policies.  One page of the document identified in Spanish and English that the parties could use mediation as a form of alternative dispute resolution.   There was no mention of arbitration.  On a separate page, there were other procedures and policies that that included a procedure on dispute resolution that was in English only.  The dispute resolution policy stated that all employment-related disputes must be resolved through binding arbitration. It stated procedures for demanding arbitration and that the parties “may agree” to mediation, but that the sole means to resolve any dispute not resolved through other means was through arbitration. It also stated that class arbitration was prohibited.


El Pollo Loco filed a motion to compel arbitration.  Plaintiff argued that the agreement was procedurally and substantively unconscionable because it was non-negotiable, and that it was misleading because of the multiple policies and the language issues.  Plaintiff further argued that the waiver of the class action arbitration was also unenforceable. 


The court explained that a contract is unenforceable, in whole or in part, if it is unconscionable. Both procedural and substantive unconscionability must be present to justify the refusal to enforce a contract or clause based on unconscionability. Procedural unconscionability focuses on oppression or unfair surprise, while substantive unconscionability focuses on overly harsh or one-sided terms. The more procedural unconscionability is present, the less substantive unconscionability is required to justify a determination that a contract or clause is unenforceable. Conversely, the less procedural unconscionability is present, the more substantive unconscionability is required to justify such a determination.


The Court held that the agreement was procedurally unconscionable in two respects. First, the inequality in bargaining power between the low-wage employees and their employer made it likely that the employees felt at least some pressure to sign the acknowledgment and agree to the new dispute resolution policy. 


Second, the court explained that the employees’ agreement to be bound by the new dispute resolution policy was not an informed decision. The court explained that:

“The explanatory materials provided… if the problem was not resolved in that manner, mediation was required. This was stated in large type, in both English and Spanish, and presented in an inviting, easy-to-read format. The description of the new policy, however, was totally inaccurate. The dispute resolution policy itself, on another page, required binding arbitration of all employment-related disputes and stated that the parties “may agree to mediate,” not that mediation was required. The description provided in the explanatory materials was misleading in that it described the new policy as one of required mediation rather than required arbitration. Moreover, the policy itself appeared in much smaller type than the explanatory materials, and in English only. This exacerbated the effect of the misrepresentation and made it more likely that the employees would be misled.” 



As such, the court concluded that “the degree of procedural unconscionability is high.”


The court also found substantive unconscionability with the class arbitration waiver because it insulated El Pollo Loco from employee class actions and class arbitrations.  The court explained that class actions may be especially important if many of those employees are low-wage earners with limited English language skills who are likely ill-informed of their statutory rights.  Moreover, the waiver was unfairly one-sided because it benefited only El Pollo Loco, which was unlikely to sue its employees in a class action lawsuit.


As such, given the procedural and substantive unconscionability, the court found the arbitration agreement along with the waiver of class action rights as unenforceable.


These decisions reaffirm law regarding arbitration that there must be an element of both substantive and procedural unconscionability before the courts will agree to render an arbitration agreement unenforceable.  It also appears clear that the greater the procedural unconscionability, the less that is necessary to prove for substantive unconscionability. Moreover, as in Roman, where there was some, but not a lot of evidence, of procedural unconscionability, the courts appear to be less willing to render the arbitration agreements unenforceable.  


Arbitration is a favored concept in California.  However, there are many occasions when those agreements are not enforced.  Parties need to be aware that when they are drafting arbitration agreements that they need to make sure that there is a certain element of fairness to the agreement so that it can be deemed to be procedurally fair and uniform.  This will help to make the arbitration agreement enforceable.

A new case has recently been decided on the enforceability of an arbitration clause in the employment context.  The Case entitled Roman v. Superior Court, (— Cal.Rptr.3d —-, 2009 WL 975994, Cal.App. 2 Dist.,April 13, 2009) addressed several issues relating to the enforcement of an arbitration clause. 


The primary issue addressed involved an application for employment that contained an arbitration clause providing that “I agree, in the event I am hired by the company, that all disputes and claims that might arise out of my employment with the company will be submitted to binding arbitration.” The court was deciding whether the arbitration agreement was one-sided and thereby unconscionable against the employee.   


In 1997, Gabriella Roman began working for Flo-Kem, Inc.  At the time of her employment, she signed the above arbitration agreement.  She argued that the agreement was procedurally and substantively unconscionable, and that the defendants had waived the right to arbitrate the claim.


The case addressed several issues.


  • Procedural Unconscionability.   The court agreed that there was an adhesive nature to the agreement, but that did not make it procedurally unconscionable.  Further, procedural unconscionability alone does not make an agreement unenforceable.  There must be some substantive unconscionability.
  • Substantive Unconscionability.  The court held that the language “I agree” by itself does not make a contract unilateral, and therefore substantively unconscionable.  The court distinguished the cases cited by Plaintiff including the Higgins case (orphaned children signed an arbitration clause with a reality T.V. show that created unilateral obligations and had severe procedural unconscionability). 
  • “In sum, we simply do not believe the Higgins court intended to hold the mere inclusion of the words “I agree” by one party in an otherwise mutual arbitration provision destroys the bilateral nature of the agreement.”
  • Arbitration Agreement Does Not Limit Statutory Rights.   Plaintiff argued that the agreement prevented her from making administrative claims. The Court disagreed.
  • Arbitration Agreement does not limit overly limit discovery.  The agreement allowed for discovery under AAA rules, and therefore was sufficient.
  • Arbitration Agreement’s Cost Splitting Provision Does Not Make it Unenforceable.  Plaintiff argued that at the time the agreement was signed, that the AAA rules which were applicable to the agreement required cost-splitting of the arbitration fees, which was unenforceable.  The court disagreed stating that the agreement allowed the AAA rules to be used at the time of the arbitration, and the current rules have the employer paying the costs.  Further, the court indicated that it can sever the unenforceable provision anyway.
  • Defendant Did Not Waive Its Rights by Conducting limited Discovery.  The defendant had demurred and sent out written discovery.  The court held that such action was not enough to constitute waiver when the petition was filed only two months after the complaint was filed.

If you would like a copy of this case, please feel free to contact Steve Mehta and ask him to email you the case. 

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